### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 8, 2003 Session In Re: LILLIE ODESSIE GR EEN, Decedent An Appeal fro

m the C ircuit Court for Da vidson County

(Proba te Divisi on) No. 01P1745 Honorable Frank G. Cleme nt, Jr., Judge

No. M2002-01672-COA-R3-CV - Filed August 29, 2003

The cour t is asked to constr ue the following l angua

ge con tained in a form will: “I give a ll my estate to my

children, if any , who survive me in equal shares, per stirpes.” The testatrix was survived by four of he r five children. The trial court held that the two children of the testatrix’s child who predeceased her did not take any of her estate. We hold likewise.

Tenn. R. App.P.3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d; and Remanded R OYCE T AYLOR , Sp. J., delivered the opinion of the court, in which B EN H. C ANT RELL , P . J ., M . S ., and WILLIA M CA IN , J ., joined. Paul N. Rudolph, Nashville, Tennessee, for the appellants, Troy Green and Thomas Roy

Green Robert B. Young, Nashville, Tennessee, for the appellees/Co-Executors, Harold Calvin Buttrey and Juanita Green Karl D. Warden, Nashville, Tennessee, for the appellee s/Defe nd ants, Freddie G. Buttrey , Roy K. Green and Joann England

OPINION The testatrix, Lillie

Odessie Green, died on October 26, 2001 at ag e ninety-one ( 91). Her will was admitted to probate N ovember 27, 2001. The will is a preprinted form with blanks to make handwritten entries. It purports to be copyrig hted“by AF

BP. All rights reserved.” The will is dated1 “ Gra ndch ildren in eq ual sha res” is hand- prin ted. 2 Per sti rpes - By ro ots or stocks; by represent ation. This t erm, derived from the civil law, is much used in the law of descent [s] an d distr ibuti on, and denot es that method of dividi ng an in test ate es tate wher e a class o r gr oup of dist ribut ees take the share w hich the ir dec eased would have be en ent it led t o, had he or she lived, taki ng thus by their right of rep resen ting such ance stor, an d no t as so m any ind ividua ls. It is the antithesis o f per c apita ( q.v.). Black’ s Law Dict ionary , Si xth Edi ti on . 3 Per cap ita - By the heads or polls; according to the numbe r of in div idu als ; s har e an d sh are al ik e. This te rm, derived from th e civi l la w, is much used i n the l aw of descen t and dis tri bution, and denotes that method of di vidin g an intest ate est ate by which a n equ al share is given to each of a num ber o f perso ns, all of wh om s tand in equa l degre e to the de ced ent, witho ut refere nce to their stoc ks or the right of re prese ntation. It is the antithesis o f per stirp es.(q.v.). Black’ s Law Dict ionary , Si xth Edi ti on -2- the sixteenth day of Februa ry, 1987 and identifiesher husband as James Thomas Green. Mr. Green predec eased Mrs. Gree

n. The dispositive la

nguag e is set fo

rth in the t

hird par agrap h as follo ws: “I give a ll my estate to my

husband. In the

event tha t my s aid husba

nd shall predec ease me or fails to su

rvive me for sixty (60) days, I g

ive all my

estate to my children, i f any, who survive me in equal shares, per stirpes. If I

am survived by neither

my husband, nor children, then I give my estate to : Grandchildren in equal shares 1 to be his/her/theirs in equal shares or their survivor.” The testatrix was survived by four c hildren, Freddie G. Buttrey , Frank Ronald Green, Roy K. Green, and JoAnn England. The testatrix was also survived by two g randsons, Troy Gr

een and Thomas Roy Green, w

ho are the children of a son who predeceased her. The g randsons appeal from the order entered June 21, 2002, which orders the estate of L illie Odessie Green distributed in equal shares to the four surviving children. The use of the term

“ per stirpes ” 2 after th

e langu age “my c

hildren, if any , who surv

ive me in equ al sha res” cr eates a n obvi ous i ncons isten cy if not i mpos sibi lity. Th e prepr inted langua ge connotes a per capit

a 3 distribution. “The cardinal rule in c onstruction of all wills is that the court shall seek to discover the intention of the te stator and give e ffect to it, unless i

t contra venes som

e rule of law or public po li cy. That intention is to be ascertained from the particular words used, fr

om the con

text, andfrom the general scope and pur pose of the will, read

in the light of the surrounding and attending circumstances.” Moore v. Neely , 370 S.W. 2d 537, 540 (Tenn.1963). In this case, taking the devise as a whole, the cle arintention of the testatrix without the langua ge “

per stirpes ” is to pas s her est ate to he r surviving childr

en and on ly to her grandchildren if there are no surviving children. “Where a testato

r uses technical

words, he

will be ta

ken to use

them in theirlegal s ense unless the conte

xt clearly indicate the contr ary . (cite omitte d) Where a wi ll is dr af te d b y a lawyer, technical words used therein must be given techni cal meanings.” (cites omitted) Banovic v. Davis , 642 S.W.2d 153, 156 (Tenn. App.1982).-3-

In this case, the will was not prepar ed by a lawyer and th

e term “ per stirpes ” is contr

ary to the remaining langua

ge. The misuse of t

he techn ical ter m “ per stirpes ” in a pre

printed f orm should notdefeat thetestatrix’s intention. “Where the intent of the testators is determined, the use of inept wo r ds or errors in grammar and punctua tion will not vary, change or alter that intent.” Mongle v. Summers , 592 S.W. 2d 594, 596 (Tenn. App. 1979). We theref ore ho ld th at the trial judge correctly determinedthe intention of the testatrix and his Order o f distribu

tion is aff irmed. Th

is matter is remand

ed to the trial court for distribution and closure of the es tate. Cost s are ta xed to the a

ppellant s.

_______________________________________ ROYCE TAYLOR, SPECIAL JUDGE